CITY OP CHICAGO V. BAKER.
'·See. 2817. Legal Rate of Interest. Legal Interest shall continue to be at the rate at six dollars upon one hundred dollars tor a year, and proportionately for a greater or less sum, or for a longer or shorter time; and no person upon any contract shall take for the loan or forbearance of money or other thing above the value of such rate. "Sec. 2818. Contracts, &c., tor More, Illegal. All contracts and assurances made, dIrectly or indirectly, for the loan or forbearance of money or other thing, at a greater rate of interest than Is allowed by the preceding section, shall be deemed to be an Illegal consideration as to the excess beyond the principal amount so loaned or forborne."
It appears from what has been said that, under this contract of loan, the defendant, the Life Insurance Company of Virginia, reaps a larger profit on the loan of its money than at the rate of 6 per cent. per annum, and that the transaction is usurious. The complainant also seeks damages because the defendant did not lend the last $2,000 of the $5,000 asked for. The report of the standing master on this point is confirmed. He saw no evidence to sustain the claim. It seems somewhat an inconsistent position on the part of the complainant to attack the loan because it is usuri· ous, and then to seek damages because it was not made. Considering the whole case, it is ordered that the account between the par· ties be restated on these principles. Let the plaintiff be charged with the loan of $3,000, which has been made, with interest thereon at the rate of 6 per cent. per annum payable monthly, and be credited with all sums paid for this interest, and also with all sums paid on the endowment policies, interest on these last-named sums to be allowed at the rate of 6 per cent. per annum from the several days of payment. For the balance thus ascertained, the complainant must make payment to the defendant, and, failing therein. the lands covered by the deeds of trust must be sold by the standing master for the purpose of satisfying the same. The case will be recommitted to the Iltanding master, to restate the account; or, if the parties can agree upon a proper statement, so much of this reference can be dispensed with. and a decretal order can be prepared provid· ing for the time and place and terms of sale; costs to be paid by de· fendant.
CITY OF CHICAGO T. BAKER. (CIrcuit Court of Appeals, Seventh CirCUit. April 18, 181)8.) No. 458.
MUlfICTPAL CORPORATIONS-POLTCE POWER-CLoSING STREETS.
An ordinance closing a street In Chicago at the place where It was by a railroad track wns not an exercise of the pollee power of the city, nnd, If property 1B Injured by such closing ot a street, the owner Is entitled to damages.
.. SAME-ILI,INOII STATUTE.
Rev. St. Ill. c. 145, I 1, provides compensation for damage caulled to property by the vacation of a street or alley; and If, before that enactment, the vacation of 8 street was an exercise of police power, for which there was no right of compensation, the statute abolished that doctrine.
In Illinois It Is not essential to a right of action against a city tor damagell sustalnedby closing a street that the property alleied to be Injured mould abut the closed portion of the street. 86F.-48
86' FEDERAL'REPORTER; ,
In an aetion for damages to property by the closing ofa street, proof of: decrease. in· rental value of neighboring· property is not admissible.·,
Error to. the Circuit Court of the United States, Northern District of illinois, Northern Division. ' T; J. Sutherland, for plaintiff in error. Clarence S. D'arrow, for defendant in error. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges. WOODS,Circuit Judge. The.. defendant in error was given judgment against the city of 04icago, ,in the sum of $5,000,for damages caused to property on the southwest corner of. Clark street and Twenty-Firststreet by the, vacation of the latter street where crossed by the tracks of the Lake Shore Mic,higan Southern and the Chicago, Rock Island & Pacific Railway Companies. Besides the city, those companies were made to the action, and damage attributed to the elevation of their ,as well as to the vacation of the street, was claimed; but, under theperenlptory instruction of the court, companies were found not I .: The radical proposition of the plaintiff in error, that "the ordinance, under which Twenty-First street" Dear the premises, was closed, was passed by the city iIi the e:x:ercise of its police powers, and hence no right of action accrueq to the plaintiff by reason of the same, or of any, acts done in pursuance. we do not deem tenable. The right to regulate the1;lse . of. ;Streetlil is recognized to be a police power, but no decision has been cited, and we know of none, in ;Whicl,l iihas been held Qr said thaUpe.power to vacate streets is of that character; auQ, as .weconceive, it eQuid ,not be regardedJls of that quality in a partjcular instance ,exercised in connection witlJ. tbe exercise .of another power, concedAd ito be of tbat .l+ind, like the. power to compel the elevation ·of ,J;ailroad:tracks. When 'ill this instance the city;deter:milled that. the.rall,road tracks adja.;ent t() the<pvoperty of the defendant in error should be elevated, it was a matter otch:oice on the part of the city, and wa.filJuade·amatter of agreement betWeen the city and the railroad companies, what streets should have subways, and what should be closed; and; 'wl'te'riihvasdefermined that TwentyFirst str«:>et 'shotJ1dbe closed where crossed by if there resulted to the property ofihe,:defendant in error a special injury, for which to compensation, it an exeeedingly harsh 3.ndunjust (?(jnclusion to say that the hartn refronHhe exereise ofa police powel',and wasthereforedamn,um absque injuria, or coui'd"bave l\eEdt' doupt on the question, it was removed by an act of the legisl::j.ture lllIllinois (section 1\ c. 145,R ,St. Ill.),which,af.ter, defining- the "power to vacate or v. close any streetol"alley, or portion ofthe same," provides that,"when property: or clo$iiig street ()f, alley, the same shaH be ascertained and paid asprovidedl!Y, law." ,In" oJ: this meaning no more than t,\:le constitutional ,provision that' ',!>rivate,propel1ysball not be. taken or damag-ed f(;)r publie use without just compensation," etc., it is a ·specific provision that there shall
CITY OF CHICAGO V. BAKER.
be compensation for damage caused to property by the vacation of a street or alley, or a portion thereof; and if before that enactment the vacation of a street could have been regarded as an exercise of police power, for the injurious results of which there could be no right of compensation, the statute to that extent abolished the doctrine, and established the rule for such cases that the individual, when sacrificed for the benefit of the public, shall not go unrecompensed. The second proposition advanced is that the plaintiff had no cause of action because the closed portion of the street was not adjacent to his property; but, while it is conceded that no one can recover for an injury suffered in common with the public, it is not essential to the right of action, under the decisions in Illinois, that the property al· leged to have been injured should abut upon the vacated portion of the street. See Rigney v. City of Chicago, 102 Ill. 64; City of Chicago v. Union Building Ass'n, Id. 379; Littler v. City of Lincoln, lOG Ill. 353; City of East St. Louis v. O'Flynn, 119 Ill. 200, 10 N. E. 395; Chicago Anderson Pressed-Brick Co. v. City of Ohicago, 138 TIL 628, 28 N. E. 75G; Parker v. Catholic Bishop, 146 Ill. 158, 34 N. E. 473; Oity of Chicago v. Burcky, 158 Ill. 103, 42 N. E. 178. While no part of Twenty-First street within a rod of the property of defendant in error was closed, yet egress and ingress which had existed to and from the west were cut off, leaving no immediate communication with the next cross street in that direction; and in that respect, at least, he suffered a special inconvenience in the use and enjoyment of his property,for which he should receive compensation. ·Whether there were other elements of special injury, we do not decide. The mere cutting off of travel along the street would seem to be a common injury, for which individual relief is not allowed. It remains to consider whether the court erred in the admission of testimony. Witnesses were permitted to testify that the rents paid for neigh boring properties were less after than before the vacation of the street. Under decisions in New York, directly in point, this testimony was incompetent. ,Tamieson v. Railway Co., 147 N. Y. 322, 41 N. E. G93; Witmark v. Railroad Co., 149 N. Y. 393, 44 N. E. 78. But it is argued that in Illinois the evidence was competent, because "it is the well-settled rule in lllinois that the proof of sales of property similarly located is competent evidence, as bearing on the question of the value of property sought to be taken or damaged." The cases referred to are Culbertson & Blair Packing & Provision Co. ·. City of Chicago, 111 Ill. 551; Elmore v. Johnson, 143 TIL 530, 32 N. E. 413; Peoria Gaslight & Coke Co. v. Peoria Terminal Ry. Co., 146 TIl. 372, 34 N. E. 550; Railroad Co. v. Haller, 82 Ill. 208, and cases there cited. When the question is of the value of a particular property the rule seems to be general, though not universal, that proof may be received of sales of other like properties similarly situated. Lewis, Em. Dom. § 443. When there has been an actual taking of property, and the value thereof is directly and necessarily in issue, the per· tinency and force of such evidence are so apparent that the propriety of admitting it has been generally recognized; and it has been held in some instances to be proper for the purpose of showing the valne of property damaged and not taken, though in such cases the value of
the property injured is in direct issue, and be ,of incidental importance only. The issue. in that class of is. the amount of damage done to the property,-the depreciation in 'its ,value attribquesutable to the cause complained of; and the light tion by the sales of other property" though competent, it'is clear must be uncertain. In Hohmann v. City of Chicago, 140 m. 226, 230, 29 N. E. 671, it was said:
"To make the evidence of any valne;. it would be necessary to show a sub· stantial identity of conditions in all respects; but no offer was made to do that, If, indeed, proof of that character would ha"e been possible,"
In Railroad Co. v. Haller, supra, it was said:
"What the property would sell for before and after the road was constructed would be one of the modes of ascertaining the damages, if the price was shown to be reduced by reason of the bUilding of the road. But it would not be the only means of determining the question. So would its rental value be another, where the property was heid for rent, but the latter mode would not be a proper criterion where it was not held for that purpose. If there was no other property of the same value or description in the place, which had been sold, then other modes would have to be resorted to than the proof of the sale of such property before and after the damage done."
The plain implication here is that the evidence of rental values of the property injured, only, is admissible. That being so, there can, of course, be no evidence of that character when the property is not held for the purpose of rent. It is to be observed, in passing, that the declaration in this case does not show the existence of buildings on the premises of the defendant in error, nor for what purposes the lots had been used. In Railroad. Co. v. White, 166 Ill. 375, 46 N. E. 978, the court, after stating the character of evidence which is admissible in such cases, said, ''It is not proper, however, to show how other property was specifically injured." No case in Illinois orels where has been cited wherein it was held that proof of rental values of other properties than that in direct issue was competent. We cannot believe that evidence of that character can, in general, be promotive of just conclusions, and it is beyond doubt that the evidence offered in this case was deceptive and misleading in its tendency. It was doubly so because the reductions in rents which were shown were attributed by the witnesses largely to an increase of dust, cin· ders, smoke, and steam, credited to the elevation of the railroad tracks, and not solely to the vacation of the street; and neither by the evidence, ncr by the instructions of the court, was the jury furnished a basis for determining to what extent the rental values proved were affected by the vacation of the street alone. It is therefore impossible to say that the evidence was harmless. Our holding is that it was incompetent. The judgment below is reversed, with instruction to grant a new trial.
WALDRON V. JOHNSTON.
WALDRON et aI. v. JOHNSTON. (Circuit Court, S. D. Georgia, E. D.
GAMING CONTRACTS-DEALING IN FUTURES.
March 2, 1898.)
A contract for the future delivery of cotton, made merely to speculate In differences on the rise and fall of the price without any intention to deliver or receive cotton, is void as a gaming contract, not only under Code Ga. 3671. but also under the general law as announced by the supreme court of the United States.
This was an action of assumpsit by Waldron & Taintor against James H. Johnston. Garrard, Meldrim & Newman, for plaintiffs. Erwin, Du Bignon, Chisholm & Clay and Saussy & Saussy, for defendant. SPEER, District Judge. The case presented for decision is this: An auditor finds that the defendant is indebted to the plaintiffs on their demand in the sum of $3,035.37. The defendant has filed exceptions to the report upon the material ground that the conclusions of law which the auditor draws from his findings of fact are erroneous. The findiug of fact not excepted to, and therefore admitted to be true, upon which I think the decision must depend, is as follows:
"1 find that the defendant during the same period resided In Savannah, Georgia, and was there engaged In mercantile pursuits, and that he employed the plaintiffs to make contracts for the future delivery of cotton In New York, with the intention of realizing upon the differences In values arising under said contracts In the New York market before the time for the delivery of said cotton arrived. 1 further find that he never Intended to deliver or receive cotton under said contracts, but relied on his agents to avoid this contingency. 1 find that the defendant's intention not to deliver or receive cotton, but simply to realize upon the differences in values, was known to the plaintiffs, and that they so managed his business as to carry out this intention, and did, so far as he was concerned, avoid the delivery of cotton."
It is insisted by the defendant that this finding affords an instance of a gaming contract which the courts will not lend their aid to enforce. Code Ga. § 3671, provides as follows:
"Gaming contracts are void, and all evidences of debt or encumbrances or liens on property executed upon a gaming consideration are void In the hands of any person."
The statute is not enacted to favor a defendant who has engaged in transactions of this character, but as an expression of a definite and fixed policy to discourage and prevent transactions which the lawmaking power has determined to be contra bonos mores. The topic has been repeatedly discussed by the supreme court of the state. In Cunningham v. Bank, 71 Ga. 400, transactions in "futures," similar to those now before the court, were declared to be "wagering," "gam. bling," "immoral," and "illegal contracts." The transactions thus stigmatized by the supreme court of the state. to quote its description, was ''the purchase of certain cotton with the intention and understanding of both parties that the cotton was not to be delivered to or received by the defendant; that there was to be a settlement at a future day, when the defendant was to receive or pay the differences between the